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What has caused the clear split in approach and unprecedented change in the tone of dissent which is seen in the decision in HM Advocate v. Martin and Miller ([2010] UKSC 10)? Clearly all the judges involved are conscientiously attempting to achieve the “right” result.  As Lord Steyn noted in the 2002 Robin Cooke Lecture, “Democracy Through Law” ([2002] EHRLR 723 at 724): 

“Where a tension develops between the views of the majority and individual rights a decision must be made and sometimes a balance has to be struck. The best way of achieving this purpose is for a democracy to delegate to an independent and impartial tribunal this adjudicative function. Only such a judiciary acting with principles of institutional integrity, and aided by a free and courageous legal profession, practising and academic, can carry out this task, notably in the field of fundamental rights and freedoms. Only such a judiciary has democratic legitimacy. The judge owes allegiance to nothing except the constitutional duty of reaching through reasoned debate the best attainable judgments in accordance with justice and law. This is their role in the democratic governance of our countries.   At the root of it is the struggle by fallible judges with imperfect insights for government under law and not under men and women.” 

 And as Lord Hoffmann has observed in his COMBAR Lecture 2001: “The Separation of Powers” ([2002] JR 137 at 138):
“Normally … the House [of Lords] will decide what the law is according to what it thinks is a fair and sensible conclusion and the reasoning in the speeches will support the result in the usual polemical style which judges feel it is necessary to adopt in order to persuade their colleagues and the public that no other answer is possible.” 

But as Kentridge AJ cautioned in giving the judgment of the South African Constitutional Court in State v. Zuma (1995 (4) B.C.L.R. 401 at 412): “If the language used by the lawgiver is ignored in favour of a general resort to ‘values’ the result is not interpretation but divination.” 

Some criticism was voiced of the early Convention rights jurisprudence which emanated from Scotland when the Scotland Act came into force in May 1999, some 16 months before the Human Rights Act was brought into force for the rest of the United Kingdom.   It was hinted that the Scottish decisions analysed matters concerning Convention rights in a manner which was too textually-tied and thereby misunderstood the complex, open-textured and responsive qualities which jurisprudence gave to fundamental rights.   The error that was apparently being made was of regarding Convention rights as simply more “black letter law” and treating fundamental rights as conferring absolute rights on individuals, while failing to take into account the rights of the community as a whole.

Thus in Brown v. Stott, 2000 JC 328  the High Court of Justiciary (chaired by the then Lord Justice General Lord Rodger of Earlsferry) found in favour of a Convention right against self-incrimination such as to prevent the Crown from relying upon compelled evidence in a road traffic case. This decision was appealed against by the Crown to the Privy Council exercising its devolution jurisdiction. The aooeak was successful, resulting in the reversal, for the first time in the history of that court, of a decision of the High Court of Justiciary.  In coming to this decision Lord Steyn made the following general observations (Brown v. Stott  [2000] UKPC D3, 2001 SC (PC) 43; [2003] 1 AC 681: 
“[A] single-minded concentration on the pursuit of fundamental rights of individuals to the exclusion of the interests of the wider public might be subversive of the ideal of tolerant European liberal democracies.  The fundamental rights of individuals are of supreme importance but those rights are not unlimited: we live in communities of individuals who also have rights.” 
 
Similarly in McIntosh v. Lord Advocate, 2001 JC 78, the finding by the High Court of Justiciary that the Article 6(2) ECHR Convention based presumption of innocence applied to applications for confiscation orders against persons convicted of drug trafficking such as to call into question the lawfulness of the statutory presumptions which the court was entitled to make in the course of such an application by the Crown was reversed on the Crown appeal to the Privy Council, with Lord Bingham observing in McIntosh v. HM Advocate, [2001] UKPC D 1;  [2003] 1 AC 1078:
“The statutory scheme contained in the 1995 Act is one approved by a democratically elected Parliament and should not be at all readily rejected.  I would for my part endorse the conclusion of the Court of Appeal (Criminal Division) in R v Benjafield [2001] 3 WLR 75, 103, para 87: 
‘It is very much a matter of personal judgment as to whether a proper balance has been struck between the conflicting interests.  Into the balance there must be placed the interests of the defendant as against the interests of the public, that those who have offended should not profit from their offending and should not use their criminal conduct to fund further offending.  However, in our judgment, if the discretions which are given to the prosecution and the court are properly exercised, the solution which Parliament has adopted is a reasonable and proportionate response to a substantial public interest, and therefore justifiable.’” 
 
But as the results in these two decisions show, it would not do justice to their position simply to characterise the approach taken by the Scottish judges in the courts below as “conservative” as opposed to the “progressive” stance taken in when the case is brought to London, since the results of the decisions of the High Court of Justiciary in Brown v. Stott and in McIntosh and of the Privy Council in “R” are more radical, more individual human rights “friendly”, more interventionist, than the decisions which have subsequently been made in favour of the Crown. Nor is it sufficient to patronise the Scottish judges as naïve “wreckers” in contrast to the sophisticated “pragmatists” to be found in the higher English judiciary.
 
There is, however, a difference of approach, characterised by a difference in judicial philosophies which, for want of better terms, might be characterised as “Aristotelian” versus “Platonic”.   In his Plato and Aristotle on Constitutionalism (1998) Raymond Polin identified the distinction thus at page 277-8: 
“What are the significant differences in the political theory of Plato and Aristotle ?  First it seems Aristotle at all times advocated the supremacy of the rule of law, rather than rule by the judgment of a super-wise man he knew to be non-existent or by an elite group unrestrained by law; but Plato always tried so to hedge that his system would produce at least in hypothetical theory the rule of a savant or a council of elite elder statesmen or philosopher-rulers whose qualifications were supposedly wisdom and virtue and who would have the ultimate political power in the State. … Such ruler or rules seemingly would be guided by, but not rigidly restrained by, positive law or custom.” 
 
Platonism and English law
 
Using this terminology, the “Platonic” approach to judging is one in which the judges, wise philosopher kings that they are, can intuit the good, or the right or just result.   They then try and work the existing law round to achieve that right and just approach.    Justice is done because the just/right result is achieved. This “Platonic” strain is one which has run as a stream deeply through English intellectual life from at least the 17th century Cambridge Platonists onwards, through to Bentham and the utilitarians – the “greatest good of the greatest number” may be seen as just another Platonic ideal form – and even on to G.E. Moore’s Principia Ethica (1903), where a good person can, apparently simply “intuit” the good.
 
Ultimately this kind of Platonism in a judicial context will lead to what the French might characterise as “the Government of Judges”.  In relation to judging, however, problems arises with the Platonic approach precisely because it is consequentialist – the good end justifies the means – such that adherence to the strict letter of the rules become less important if this leads to an unjust and unworkable result i.e. floodgates arguments.    The problem with appeals to workability and with achieving what seems like a “right result” is that it might lead the judges to be overly sensitive to the general populace’s sense of “justice” (with its tabloid driven views on what justice requires in a particular case) and the sensitivity to “workability” of results might lead to too great a deference to the Executive’s definition of what they can cope with.   Karl Popper in The Open Society and its Enemies (1945) at least certainly saw Platonism as essentially finally leading to forms of totalitarianism. 
As Lord Justice Sedley (dissenting) noted in Vellino v. Chief Constable of Greater Manchester Police  [2002] 1 WLR 218, CA at 233 paragraph 60:
“The public conscience, an elusive thing, as often as not turns out to be an echo-chamber inhabited by journalists and public moralists.  To allow judicial policy to be dictated by it would be as inappropriate as to let judges dictate editorial policy.   …    But to expect a judiciary to modify its decisions as to what the law and justice require because of what it fears the media would make of them is to ask for the surrender of judicial independence.  The ‘fair, just and reasonable’ test is now the established judicial control on ground-breaking in tort.  If the law were ever to revert to an exogenous test, it should be one which gauges the response of people who actually know what the court’s reasoning is; and no court which has confidence in its own reasoning should be worried about that.” 
 
It is at least arguable that such judicial blindness to – or, at the very least, a constitutional incapacity to countenance – the injustices and institutional corruption behind, say, the events of Bloody Sunday and the prosecutions and lengthy imprisonments of the Guildford Four, the Maguire Seven, and the Birmingham Six had its root in a too ready responsiveness to accede to perceptions of popular justice and executive workability.   But as Lord Steyn observed in R v. Connor; R v. Mirza  [2004] UKHL 2 [2004] 1 AC 1118 at paragraph 4:
“Nowadays we know that the risk of a miscarriage of justice, a concept requiring no explanation is ever present.   In earlier times courts sometimes approached the risk of a miscarriage of justice in ways which we would not nowadays find acceptable. In 1980 the Court of Appeal denied the Birmingham Six the right to sue the police in civil proceedings. Lord Denning MR said about the possible innocence of the men: ‘This is such an appalling vista that every sensible person in the land would say: It cannot be right that these actions should go any further’: McIlkenny v Chief Constable of the West Midlands [1980] QB 283, at 323D. The men stayed in prison. Some 12 years later their convictions had to be quashed. Together the miscarriages in the cases of the Guildford Four, the Maguire Seven and the Birmingham Six were described by Lord Devlin as ‘the greatest disasters that have shaken British justice in my time’: ‘The Conscience of the Jury’(1991) 107 LQR 398.”
 
Aristotelianism and Scots law
 
For the systematic Aristotelian the language of the law has to be logic; anything else would be a form of tyranny, the palm tree justice of the qadi – anathema sit !   Thus, Sir Thomas More’s self-defence against the charge of treason contrary to the Act of Treasons 1534 in his refusal to admit the right of Henry VIII to assume the title of “Supreme Head on Earth of the Church of England” was famously based on careful rule-parsing and logic-chopping.  He denied that he could be found guilty under the 1534 Act since, even under close examination, he had always remained wholly silent on the matter of the King’s new title and, at common law, his silence might be presumed to be consent.  It was only after he was found guilty and condemned to death did he then avow his true belief that the assumption of this title by the King and the statute which purported to ratify it were each was ultra vires as being “directly repugnant to the laws of God and his Holy Church”.  The truth, then, was at last publicly expressed – More did indeed deny the King’s claim to supremacy over the Church – but his condemnation for speaking the truth did not come about as a result of lawful means.
 
In contrast to the position in England, and notwithstanding the Reformation in 1560, in Scotland Aristotelianism – as mediated through mediaeval Catholic Scholasticism –  remained the dominant intellectual approach in the four Scottish Universities throughout the 17th and 18th centuries (See Alasdair Macintyre Whose Justice, Which Rationality (1988) at Chapters XII onward for a full account on this).   In the Ur-text of Scots law – Viscount Stair’s The Institutions of the Law of Scotland (first edition 1681; second edition 1693) – the Aristotelian approach is evidenced from his first systematising chapter when the law is analysed in terms of its material formal, efficient, and final causes.    And in his Summa Theologiae, Thomas Aquinas makes the following pertinent observations on the proper (Aristotelian) relationship between judges and legislators at IaIIae q. 95,1 resp 2-3:
“As Aristotle says (in Rhetoric I, I. I354a31), ‘it is better that all issues be regulated by law than to be left to the decision of judges’.   Three reasons may be given:
 first, because it is easier to find the few wise persons who suffice to frame rightful laws than the many to judge aright about every single case;
 secondly, because framing the law allows for a long time during which to ponder over what they should enforce, whereas judgments on particular facts are about cases which suddenly blow up.  It is easier to see what is right by taking many cases into consideration than by relying on one solitary case
  thirdly, because lawgivers judge on the general lie of the land and with an eye to the future, whereas judges have to decide on the cases before them, about which they can be affected by love or hate or some partiality, and this can impair their judgment.
 [I]t is better, wherever possible, to draw up laws on matters to be judged and to leave as little as possible to individual discretion.   As Aristotle also notes (in Rhetoric I, I. I354b13), some individual features, which cannot be covered by general laws have to be left to judges, such as questions of fact and the like.” 
 
The “Aristotelian” approach to judging is one in which the consistency and coherence of the overall system of rules is regarded as being of paramount importance.   It is in following and respecting the structures and procedures of the law as laid down that justice is done and achieved, not in the particular result in the particular case.    It is an approach diametrically opposed to Oliver Wendell Holmes (in)famous remark in his opening lecture on the Common Law (1881) to the effect that “the life of the law has not been logic; it has been experience”.
 
The distinction is perhaps most plainly seen in H M Advocate v.  “R” ([2002] UKPC D3; [2004] 1 AC 462) where the Privy Council in its devolution jurisdiction considered the question as what remedy could be pronounced by the court where it was found that there had been a breach of his Article 6 Convention right to be brought to trial within a “reasonable time”.   The Board split 3:2, with the three Scots Judges – Lord Hope, Lord Rodger and Lord Clyde – forming a majority bloc on the Board in the face of robust dissent from Lord Steyn and Lord Walker.    Lord Steyn was also unhappy that a decision which might, in effect, let the guilty walk free, would be subject to adverse public reaction and might bring the idea of the necessity for judicial protection of human rights into disrepute.    He noted (at paragraph 18):
 “A characteristically elegant observation of L’Heureux-Dubé J in R v O’Connor [1995] 4 SCR 411 is relevant.  She said p 461, (para 69):
‘It is important to recognize that the Charter has now put into judges’ hands a scalpel instead of an axe – a tool that may fashion, more carefully than ever, solutions taking into account the sometimes complementary and sometimes opposing concerns of fairness to the individual, societal interests, and the integrity of the judicial system.’
The moral authority of human rights in the eyes of the public must not be undermined by allowing them to run riot in our justice systems.  In working out solutions under the Scotland Act 1998 and the Human Rights Act 1998 courts in Scotland and England should at all times seek to adopt proportionate remedies.  In my view there is nothing in the open-textured language of section 57(2), read in context, which rules out the application of such an approach in this case.” But Lord Rodger, speaking as part of the Scottish majority in the case, was equally robust in his response to Lord Steyn at paragraphs 128-9, 155:
 “Parliament has quite deliberately treated the acts of members of the Scottish Executive differently from the acts of Ministers of the Crown.    [I]n all such cases of positive acts by a member of the Scottish Executive the legal consequence of incompatibility with Convention rights is that the purported act is invalid so far as it is incompatible.  That is the legal consequence which Parliament has chosen to attach to this situation – whether or not it is the consequence that would most suit the party who challenges the act. …
In enacting a constitutional settlement of immense social and political significance for the whole of the United Kingdom, Parliament has itself balanced the competing interests of the Government of the United Kingdom, of the Scottish Executive, of society and of the individuals affected.  Having done so, Parliament has decided that members of the Scottish Executive should have no power to do acts that are incompatible with any of the Convention rights.  In this case that means that the Lord Advocate has no power to continue the prosecution on charges 1 and 3.  If this is to use an axe rather than a scalpel, then Parliament has selected the tool.  Your Lordships’ Board cannot re-open the exercise that Parliament undertook and re-balance the competing interests for itself.  Rather, it must loyally give effect to the decision of Parliament on this sensitive matter, even if – or perhaps especially if – there are attractions in a different solution.”
 
It should be borne in mind that this suggested distinction between the Platonists’ result driven approach and the Aristotelian rule structured approach is an attempt to capture an “ideal type” or tendency and is not meant to constitute a complete characterisation or prediction as to how any individual judge will decide in any particular case.   It is however intended to cut across the normal crude characterisation of judicial philosophies as either “activist” or “conservative”, or the judge as “pro-claimant” or “pro-State”.  It is also a different distinction from that bedevilling American constitutional law as between “strict constructionists” and “up-daters” – see for example Ronald Dworkin The Supreme Court Phalanx: the court’s new right-wing bloc (2008).   One can, for example, be an Aristotelian judge and yet accept that the European Convention is, and is to be interpreted still as, a “living instrument”.    And judges of whatever predisposition or pedigree can (at different times) be Platonists or Aristotelian, to a greater or lesser degree.
 
The problem with the Platonist approach is that it is judicial intuition which will be of the most significance in determining the outcome, and this intuition may be influenced by ideas of general acceptability of the result.   The problem with the Aristotelian approach is that it may lead not only to difficult results, but decisions which are out of kilter with the predominant ethos of the society within which the judges exercise their function – leading to corrosive allegations of an unrepresentative and “out of touch” judiciary.   The Aristotelian lets the rules guide one to the particular, whether initially desired or not; the problem being that the result may not be the most workable and indeed one which the judge would personally prefer not to reach. See, for example, Millar v. Dickson,  [2001] UKPC D 4;   [2002] 1 WLR 1615 per Lord Bingham at 1632, paragraph 38:
“[T]he point is whether the agents on behalf of the accused made a voluntary, informed and unequivocal election not to claim trial before an independent and impartial tribunal and not to object to the respective temporary sheriffs as a tribunal not meeting the requirements of article 6(1). They could only have done this if they appreciated, or must be taken to have appreciated, the effect of the eventual decision in Starrs v Ruxton 2000 JC 208  or the real possibility of a decision to that or similar effect.  In my regretful conclusion there is no evidence, and nothing in the judicial decisions before the Board, which would entitle us to find that the accused or their agents appreciated this nor is the Board entitled to infer that they must have done.  A finding or inference to the opposite effect is in my view very much more compelling.  I conclude, without enthusiasm, that the finding of tacit waiver cannot be supported.
 
Whether or not this suggested pull as between Aristotelian and Platonist tendencies in the judicial role does indeed accurately account for the tensions evident in HM Advocate v. Martin and Miller [2010] UKSC 10  will never been known.  The distinction is offered simply as another way of interpreting the judgments resulting from the court which as a UK institution is certainly heir to deeply rooted intellectual as well as constitutional traditions north and south of the border.    It is perhaps inevitable that some tension should result from the heady intellectual mix which resulted from the meeting and mixing of these traditions.  The surprise is, perhaps, that it so rarely comes to the surface.